Whole Woman’s Health v. Hellerstedt
2016 Supreme Court Case
This case is going to be absolutely critical to abortion procedures in our society. It is set to be the single largest case since Planned Parenthood v. Casey in 1992. The case discusses a Texas law that requires abortion clinics to meet safety standards set for surgical clinics.
The case has the potential, depending on how broadly the court takes it, to not only affect this law but other state laws within Texas and across the country.
- The main argument is that this places an “undue burden” on a woman’s ability to receive an abortion because the new standards are unnecessary.
- Meeting safety standards is a benefit for everyone. The state has an interest in protection the health of the mother.
- There are two main precedents that establish a state’s ability to limit abortion access throughout the pregnancy.
- Casey: The Court determined that a state has the capacity to regulate abortion before the point of viability (the point at which the baby can survive outside the womb) and ban abortion outright after that point. Viability is typically around 20 weeks. An undue burden is when a state law bans access to abortion completely before viability.
Here the state is not banning abortion at a certain time. A woman can still get one at a facility that meets the new standards. The state is regulating standards of safety for an abortion facility. According to the definition established in Casey, the state is in its rights to do so.
- Carhart II: The Court allowed the state to ban a method of abortion (partial-birth abortion) because there was not a consensus in the medical field that concluded partial-birth abortion was safe. The state’s interest in this case was argued as an investment in preserving all vulnerable human life both inside and outside of the womb. However, while the former point was not the interest the state was fighting for, the case still established a notion that promoting safety in abortion procedures allows for abortion to be regulated.
In this case that the Court is hearing now, the state is intending to increase safety in abortion facilities. Promoting safety in both abortion facilities and procedures increases the safety of mothers.
- Contrary to widespread misconceptions, the pro-life movement cares for both women and unborn children. Pro-Life includes all life. Even if she chooses to abort, a woman never deserves to suffer from either mental or physical harm.
- If an abortion is going to happen, it should be safe. And these clinics, like any surgical clinic, should be required to meet safety standards. Women deserve to have hospitals nearby in the case of an emergency when an abortion is being carried out. This is about protecting mothers.
A Strong Pro-Choice Critique:
- The health standards put on abortion facilities is unfair. The standards for birthing facilities are not the same as those for abortion facilities. This shows that the law is intending to be more of a burden on abortion facilities.
In an excerpt from a document created by the Texas’ Department of Health details regulations on birthing centers:
New Subchapter D, §§137.31 – 137.55, establishes new operational and clinical standards for the provision and coordination of treatment and services provided by a birthing center. The standards include: operational and clinical policies and procedures; organizational structure and delegation of authority; personnel policies; qualifications and duties of staff (including supervision of professional and non-professional personnel); financial solvency; physical, environmental, and sterilization requirements for birthing centers; sanitary standards and universal precautions; disposition of medical waste; general requirements governing the provision and coordination of treatment and services; risk assessments; emergency services; disclosure requirements; prenatal care; serologic test for syphilis and Human Immunodeficiency Virus (HIV) infection; physician delegation; physician consultant procedures; and procedures for drugs and biologicals; labor and birth procedures; procedures for the care of the infant; discharge procedures; postnatal and postpartum care of the mother and infant; quality assurance program; clinical records; reporting and filing requirements; and other state and federal compliance requirements.
The additional physical and environmental requirements for birthing centers include: providing a safe and sanitary environment that is properly constructed; providing an operating sink and toilet; providing emergency lighting and a written fire and disaster plan; and ensuring that appropriate equipment is available to sterilize instruments, equipment and supplies before use in the center. Birthing centers will be required to develop, implement, and enforce written policies relating to sanitation and sterilization; as well as policies governing the provision and coordination of treatment and services. Sterilization standards have been established which will require a birthing center to use steam sterilization and/or dry heat sterilization, use control measures to ensure sterilization, and to maintain documentation of the results of the control measures. The birthing center will be required to provide the department with its organizational structure which clearly defines its lines of authority. Minimum qualifications and duties have been added for professional and nonprofessional staff. Birthing centers will be required to ensure that its midwives comply with specific provisions of the Texas Midwifery Act, Texas Civil Statutes, Article 4512i. A birthing center will be required to file the birth certificate or ensure that its midwives file the birth certificate. If the Board of Health requires data collection relating to birth defects, the birthing center shall make this data available. Other federal and state requirements have been added relating to midwives, laboratory and/ or pharmacy services, professional nurse and licensed vocational nurse reporting and peer review, occupational safety and health, physician assistants, prescription medical devices, and trade and consumer practices, with which birthing centers are required to comply
Birthing centers do not have the same health standards, because birth is not a surgical procedure unless it is a C-section. However, that does not mean that they shouldn’t be held to higher standards. Texas should pass another law, or amend this one, that extends new and tougher standards to birthing centers.
However, this does not negate the fact that the state should hold abortion facilities to a higher standard in the mean time. Abortion and birth are two different kinds of procedures. The state is still in its right to regulate abortion. The Court cannot command that the state make a new law for birthing centers – that is a matter for the legislature. The Court can only determine if the law for abortion facilities standards is constitutional.
Tabling Co-Chair, SFS ’19
Vice President, COL ’18